A discussion of how attorneys (Judges, Prosecutors
and Defense Lawyers), protect their professional careers, assets and advancement
into politics by concealing unfair conduct in trials and wrongful convictions;
delaying the release of wrongfully convicted citizens; refusing to admit
when they are wrong, and changing unconstitutional actions into artificially
legal actions by applying a progressively greater standard for finding
error at each higher level of the court system.

I. Checks and Balances.

The Founding Fathers established three branches of our Government; the
Executive Branch, consisting of the President, Governors, U.S. Attorney
General, FBI, State Attorney Generals, State Prosecutor's and police; the
Legislative Branch, consisting of the U.S. Senate, House of Representatives,
State Senates, State Houses of Representatives and City Councils; and the
Judicial Branch, consisting of the U.S. Supreme Court, U.S. Courts of Appeals,
U.S. District Courts, State Supreme Courts, State Courts of Appeals and
local County Courts, as those institutions have evolved today, discounting
Federalism and the separate sovereign status given the States. That system
of Federalism gives rise to a separate problem in our justice system under
the policies of "comity" which are discussed more fully in my essay, "Civics:
An Advanced Course Taught Only In Prison."

The purpose of the Executive Branch, for purposes of this treatise,
is to provide the muscle to enforce the laws enacted by the Legislative
Branch necessary to an ordered society. Almost unique in the history of
the world, our Constitution provided for the Judicial Branch to be totally
independent from either the Executive or Legislative branches of our government,
and placed upon that independent judiciary the solemn duty of ensuring
the laws passed by the Legislature, and the methods used to enforce those
laws by the Executive Branch, did not contravene the basic rights of the
people of our nation set forth in the Bill of Rights.

Further, with an uncommon foresight, our Founding Fathers enacted provisions
allowing our Constitution to be Amended so as to evolve with changing times,
technology and the evolution of social values. This Amendment procedure
was made extremely difficult, requiring the consent of two-thirds of both
the House and Senate, and Ratification by three-quarters of the States,
to ensure the grave action of changing or adding to the cornerstone principles
governing our society was not lost on those desiring the change, or taken
in the heat of the moment generated by some contemporary historical event
affecting national pride or emotion. The process was designed in such a
manner as to require years to complete, allowing wisdom to replace outrage
or passion, and discussion to replace rhetoric and political posturing.

No greater document has ever been penned by the hand of man in the history
of the human race than the Constitution of the United States. Yet it is
not flawless, as my discussion of the effects of Federalism in producing
the Doctrine of Comity, and that doctrines' effects of circumventing the
rights of the individual citizen by allowing unconstitutional actions of
the sovereign States to go uncorrected by Federal Courts, in "Civics: An
Advanced Course..." shows all too well.

a.) Common Law vs. Codified Law.

Unfortunately, the barriers the Doctrine of Comity raise to the protection
of the Constitutional rights of citizens by the Federal Judiciary, is not
the only way the Legislative and Executive Branches of our government have
found to constrain the Federal Judiciary from acting in defense of a citizen
who has been unconstitutionally searched; arrested; tried; convicted or
sentenced in violation of the spirit behind the Bill of Rights. At the
time of the writing of the Constitution, English Common Law governed the
Colonies. English Common Law had evolved over 500 hundred years, since
the signing of the Magna Charta in 1216 A.D., under pressures generated
by the right to a Writ of Habeas Corpus where imprisonment was found to
have been obtained arbitrarily, based on political maneuvers, without authority
of law, or by use of questionable procedures. From the Writs of Habeas
Corpus granted to King's subjects over those 500 years, and the proceedings
and rulings thereon, came the evolving concept of "due process of law,"
jealously preserved in the Fourth, Fifth and Sixth Amendments in the Bill
of Rights. Due process, at that time, was understood to mean equitable
treatment of both parties before a court. It was what was "fair" to both
sides, not just in the manner the court conducted the proceedings and allowed
each side to prove its case, but in the outcome of the proceedings as leading
to a just result.

There are two types of "due process" in our courts today. One is the
"Procedural Due Process" which encompasses such things as the Rules of
Court and the Rules of Evidence. The other is "Substantive Due Process"
which encompasses the outcome of the proceedings leading to a just result
and having been obtained in a fair manner.. for instance, not allowing
the government prosecutor to hold a shotgun on the jury and force them
to sign the verdict form in the section finding guilt, to give an extreme
example.

As explained more in detail in my articles, "Once You Are Accused,"
and "Civics: An Advanced Course...," the courts of today are so caught
up in the strict enforcement of Procedural Due Process, in the form of
Codified Law, that they have lost sight of simple right and wrong as is
embodied in the Substantive Due Process rights actually in the minds of
the people who wrote our Constitution at the time it was written. Or, as
Winston Churchill stated, our Courts have forgotten that:

"Rules are made for the obedience of fools and the guidance of wise
men."

A perfect example of the conflict with Common Law substantive due process,
and the fairness embodied in that fundamental principle, is the case of
Jonathan C. Shaw and Mango Watts of California as decided by the United
States Court of Appeals for the Ninth Circuit, filed on December 22nd,
2003, and published and reported in 353 Federal Reporter 3rd Edition at
pages 697-711.

Mr. Shaw and Mr. Watts were arrested, charged, tried, convicted and
sentenced on multiple counts of assault, robbery and attempted robbery
in connection with an armed robbery of a Lyon's restaurant in September
1995. Mr. Watts
and Mr. Shaw were tried at separate trials, with Mr. Watts being tried
two years later than Mr. Shaw. See, Shaw v. Terhune, 353 F.3d 697,
698-99 (9th Cir. 2003).

The testimony and facts of the robbery were that only one of the robbers
had a gun, and that only one of the two robbers had "personally used" a
gun during the robbery. This is important because in California there is
a "Sentencing Enhancement" which greatly increases the sentence of any
person found to have "personally used" a firearm during the commission
of a felony.

Yet despite the fact that all of the victims testified there was only
one gun, and that only one of the robbers used the gun, the State prosecutor
charged both Mr. Shaw and Mr. Watts with the "personal use" of a firearm.
I must regress for a moment in my analysis of these two convictions to
point out something commonly known by defense lawyers, but not general
public knowledge.

Prosecutors, if they have multiple separate offenses, or multiple defendants,
prefer to proceed in a joint trial. This preference stems from the tendency
of juries presented with multiple offenses, to find guilt as to at least
one offense, increasing the chance of obtaining a conviction. In multiple
defendant cases, a "birds of a feather" strategy is used through admitting
into evidence either prior convictions or unacceptable social status and
life styles of the various defendants, and "painting" the other defendants
with the same brush, again resulting in a higher conviction rate. The legal
justification used is called "judicial economy." Yet as will be seen from
Mr. Shaw's and Mr. Watts' cases, the "judicial economy" pretext is rapidly
abandoned when the prosecution desires to increase the sentence of, in
this case, two defendants.

Proceeding in two separate trials, separated by two years, the prosecutor
argued that Mr. Shaw and Mr. Watts each was the one person during this
robbery who "personally used" the gun, and obtained separate convictions
on the sentencing enhancement for each defendant, causing each of their
sentences to be increased by a minimum of three to five years. The decision
does not indicate how long Mr. Shaw’s and Mr. Watts' sentences were enhanced,
but California Penal Code § 12022(c) mandates a minimum of three,
and a maximum of five, years added consecutively to any sentence where
the defendant was found to have "personally used" a firearm.

Mr. Shaw, upon learning of Mr. Watts' conviction for the "personal use"
of a firearm also, filed a State Writ of Habeas Corpus asserting a violation
of his rights to due process and a claim of actual innocence. The California
courts denied his petition.

A year later the case, now on Federal Petition for a Writ of Habeas
Corpus, came before the United States Court of Appeals for the Ninth Circuit,
only one level below the United States Supreme Court. The Court affirmed
the denial of Mr. Shaw's Writ. The reasons given for the denial are a perfect
example of what happens when codified law conflicts with "the fundamental
conceptions of justice which lie at the base of our civil and political
institutions," Hebert v. Louisiana, 47 Supreme Court Reporter, 103
(1926), and results in a violation of the concepts underlying ordered liberty
inherent in substantive due process, which was the cornerstone of English
Common Law Habeas Corpus jurisprudence, from which the Fifth Amendments'
Due Process Clause was derived and understood by the writers of the Constitution.

While the right to a Writ of Habeas Corpus was secured to U.S. citizens
in Article I, §9, cl. 2 of the Constitution, Congress, in 1996 amended
28 U.S.C. §2254, the Habeas Corpus statute, to include a provision
prohibiting the granting of a Writ of Habeas Corpus by a State prisoner
unless the "adjudication on the merits," issued by the State Courts was
"clearly contrary to...or an unreasonable application of….federal law as
decided by the U.S. Supreme Court."

The Ninth Circuit held that because the U.S. Supreme Court had never
held that it violated due process for a prosecutor to obtain separate convictions,
at separate trials, of two separate defendants for one criminal act that
Mr. Shaw was not entitled to Habeas relief.

The Court denied Mr. Shaw's writ while also stating:

"There is little doubt that the actions
of the prosecutors in the case before us may be characterized as something between stunningly dishonorable and outright
deplorable. The dissent's outrage at the prosecutors' "shocking indifference
toward the fundamental conceptions of justice which lie at the base
of our civil and political institutions," [citation omitted], is
eminently understandable. " Id. at 705-706.

Judge Wallace filed a scathing six page dissent to the five page opinion
of the Court, wherein he concludes:

"I cannot support an outcome that assumes
a constitutional violation of either Watts's or Shaw's rights, but
concludes there is no remedy." Id. at 711.

There is no "remedy at law," in this case simply because Congress has
chosen to trump Common Law substantive due process rights embodied in the
Constitution, which have evolved for the past 800 years, with Codified
laws that circumvent what is right and fair, i.e., what is "Just."

The outcome of this case is not unique. It is but one example of thousands
of cases that have been decided in a similar manner over the past seven
years since Senators Orrin Hatch and Trent Lott pushed the 1996 Anti-Terrorism
and Effective Death Penalty Act through Congress after the Oklahoma bombing
of the Federal Building.

More importantly, as discussed in the next section of this essay, the
adoption of Codified laws by both the States and the Federal Government,
while at the same time specifically abrogating Common Law from our system
of justice, is interfering with the independence of the Judiciary established
in the Constitution which makes our system of government unique in the
history of the world. It threatens our very existence as a free people
by removing the power of the Judiciary to protect the people from government
over-reaching of the type expressly evidenced in Shaw v. Terhune,
supra..

b.) How the Independence of the Judiciary Has Been
Undermined.

Over the past forty years the Judiciary has come under repeated and
sustained attack, for in essence, doing their job. The first attacks came
in the 1960's and 1970's in the form of public outrage resulting from reversals
of criminal convictions based on "technical" errors. At that time, some
of that concern was justified. In response, the United States Supreme Court
decided a case named Chapman v. California, 386 U.S. 18 (1967) which instructed
the courts
of this nation that no criminal conviction would be reversed for error
until the reviewing court applied a "harmless beyond a reasonable doubt"
standard and concluded the error committed undermined the reviewing courts'
confidence in the outcome of the trial. True "technical" reversals disappeared
from our justice system at that time.

Unfortunately, because the public is generally uneducated in regards
to what is a "technical" error, and what is a procedure established by
history as necessary for a trial to be fair, many long established trial
practices were able to be portrayed to the public as "technical" requirements
by prosecutors who wanted more leeway in presenting their cases to juries.
Many judges, because they had started their careers as prosecutors and
remembered how these long evolved practices, such as preventing a jury
from knowing a defendant had a past criminal history, sometimes interfered
with their ability to obtain convictions of people they were convinced
were "bad," in cases where there was little evidence of guilt, and the
Judicial Canons of Conduct also limited their ability to express opinions
on these changes, kept silent on the issues raised.

Over time, practices which had been found as too prejudicial to the
defendants right to a fair trial during the evolution of English Common
Law, began to reappear in our trials, and reversals for those errors were
denied by judges afraid to be labeled as soft on crime by prosecutors who
had no ethical restrictions, or Canons of Conduct, placed on them which
prevented them from holding press conferences and appealing to a legally
unsophisticated public to support these changes.

One example of this was the enactment of State Court Rules, similar
to Federal Rules of Evidence 412-415, allowing the introduction of a prior
conviction for a sex offense in sex offense prosecutions. The stated reasons
for the enactment of these rules is that "sex offenders have a high rate
of recidivism and are more likely to commit another sex offense than defendants
who commit other types of crimes." Once a jury sitting in judgment of a
person accused of a sex offense is told the defendant was convicted of
another sex offense sometime in the past, a verdict of guilty is almost
assured, even in classic "my word against her word" cases.

While the judge is given the discretion to prohibit the introduction
of the defendant's prior sex offense if he finds it is "more prejudicial
than probative [of the charges being tried]," seldom do judges exercise
that discretion and prohibit the introduction of a prior sex offense into
evidence because "common knowledge" holds that once a person commits a
sex offense they will always have a "propensity" to commit other sex offenses,
and the Rules enacted specifically allow the introduction of the prior
conviction to show the defendant's "propensity" towards committing that
type of crime.

The problem with this is that all statistics collected on the recidivism
rate of sex offenders finds that sex offenders, once released from prison
after a conviction, have the second lowest rate of recidivism by committing
a new sex offense of all criminal defendants. The lowest rate of recidivism
is for persons released from prison after being convicted for murder, and
runs around 1.2%. Sex offenders have a recidivism rate of 2.5%. All other
crimes, such as robbery, arson, burglary or felonious assaults. have a
much higher rate of the released felon committing the same crime. (See,
my study, "Why Megan's Laws Are Unconstitutional," citing 12 statistical-studies
involving over 200,000 released prisoners).

These Rules, backed by popular demand, like the Mandatory Minimum Sentencing
Laws, interfere with the independence of the Judiciary to tailor trials
and sentences to individual's cases.

The Judiciary was charged by the Founding Fathers with protecting the
people of this nation from imprisonment obtained solely by the disparity
between the resources available to the average individual to defend against
criminal accusations, and the relatively unlimited resources the government
can bring to bear to prosecute the crime. The ability to carry out this
duty to the citizenry was strengthened and ensured by providing for an
independent and impartial Judiciary armed with the power to release a citizen
when the proceedings leading to imprisonment did not comport with "fundamental
conceptions of justice," or, substantive due process of law.

Codifying our laws, and eliminating Common Law, are not the only way
the changes in our system of justice is endangering the spirit of the protections
written into our Bill of Rights. It is not just prosecutors or legislators
who have hamstrung the ability of our Courts to correct violations of our
Constitutional rights. The Courts themselves, bowing to conservative public
sentiment, seeing only conservative judges picked for appointment to higher
courts, and hearing even our President publicly complaining about “liberal
activist judges," have also played an important part in undermining the
rights of the individual citizen to simple fairness, which is the cornerstone
of substantive due process.

The courts have done this by establishing progressively higher degrees
of error which must be shown by a criminal defendant as their case progresses
through the court system. Which leads to the next subject. Before I proceed,
I must comment that conservatives reading this essay will attempt to discount
the message by labeling the messenger as a "liberal." I counter by stating
it is not liberal to expect fairness from our Courts of Justice, in all
things they hear and consider, both civil actions and criminal prosecutions.

I must also ask the reader to be patient. My conclusions, stated in
the synopsis after the title of this essay, come after studying and considering
a broad range of present conduct and policies when viewed in combination.

The public sees and hears only bits and pieces of what I am discussing
here, and those separated by large gaps of time determined by when the
media turns its attention to some particular criminal case. My intent is
to pull the disjunctive presentation presented by the media of "justice"
in this nation, over time, into one condensed set of documents presenting
a cogent argument detailing what has went wrong enough to allow decisions,
such as the one in Shaw v. Terhune, supra., to stand uncorrected and without
"remedy at law."

This treatise pulls all the sparate areas of error discussed in my other
treatises, essays and articles, into the larger problem discussed in this
treatise, and advances a theoretical root cause of all the problems identified.
The first step in solving a problem is understanding a problem exists.

c.) Inadequate Staffing and Higher Standards of Review 1.) Inadequate StaffingIt is a carefully guarded secret in the legal community that the present
structure of our court system is inadequate for a careful review of each
case making its way through our court system to be made by the numbers
of judges allotted to each court. As statistically proven in my study,
"All the King's Horses and All the King's Men...," cases on appeal are
being subjected to the type of triage weeding of "those who can be saved
-vs- those who cannot be saved," seen on battlefields with inadequate medical
facilities. The scene in the movie "Pearl Harbor," where the nurse marks
the men on their forehead with lipstick, comes to mind. Too many injured,
too few doctors, not enough time.

Our court system's districts, or the geographical area they serve, were
set up well over 100 years ago when the population of this nation was less
than 60 million people. At that time, for example, a United States Court
of Appeals was presented with 800 or 900 hundred cases per year. In the
year 2000, U.S. Courts of Appeals decided over 56,000 cases, and had over
46,000 cases pending on backlog.

How has our court system dealt with this massive increase in case load,
(67% since 1980), when the numbers of courts assigned to geographical areas
has not changed (except at the very lowest trial court level, where the
problem is most visible), and the numbers of judges has increased, in the
U.S. Courts of Appeals, by only 7% since 1980?

The courts have implemented two methods of dealing with the increase
in cases beyond the physical capability of the available judges to review.

First, the courts have hired increasing numbers of law clerks as support
staff for the judges, over which the judges act as supervising attorneys,
similar to "of counsel," members of law firms, hired fresh out of law school.
These law clerks, also mostly newly graduated from law school, (albeit
some are career professionals), have been given more and more responsibilities
of initially reviewing new cases filed and deciding whether or not the
case should be brought to the judge's full attention, and contains merit,
or whether the case presented is without merit. The judge, never having
seen the trial record, relies on a short summary and recommendation prepared
by the law clerk. In cases where the law clerk does not see any merit to
the appeal, this summary is presented with an Order denying the appeal
already prepared and attached for the judge to sign.

The results produced by this system are inconsistent decisions in the
form of erroneous decisions in criminal or Habeas cases, made by the U.S.
District Courts, allowed to stand by an inexperienced law clerk reviewing
the case and recommending against it being afforded a full review, while
the very same error, which catches a more experienced law clerk's eye,
or a judges eye, at a later date, is ruled upon and reversed. This leaves
the first criminal defendant in prison, on an unconstitutionally obtained
conviction, while the other later defendant receives justice. Justice becomes
hit or miss, the luck of the draw.

By way of example, yet not directly on point, a recent decision of the
United States Court of Appeals for the 6th Circuit provides instruction.
Three years ago I litigated a case named Searcy v. Carter, which I believe
is published in 226 Federal Reporter 3rd Edition. (I am awaiting release
and have sent all my case law and law books home). In Searcy's case I argued
the date he filed his Habeas Corpus was not past the one-year deadline
established by the 1996 Anti-Terrorism and Effective Death Penalty Act,
because he had taken direct appeals from the denial of a Motion for New
Trial to both the Ohio Court of Appeals and the Ohio Supreme Court which
afforded him an extra 90 day tolling of the one-year time limit during
the time he could have taken appeal to the U.S. Supreme Court. The
Sixth Circuit denied Searcy a Certificate of Appealabilty, (also a new
procedure enacted in 1996), stating that because Searcy's appeals were
from the denial of his motion for New Trial, instead of a direct appeal
from the trial itself, the 90 day tolling allowed for Direct Appeals did
not apply.

Mr. Searcy's Habeas was denied as untimely filed by the Court.

Yet on October 22nd, 2003, in the case of Abela v. Martin, 348
F.3d 164, at 172-173 (6th Cir. 2003), the United States Court of Appeals
reversed its previous holdings and held the additional 90 days tolling
of the one- year time limit does apply to "post conviction or other collateral
relief" proceedings by State prisoners in State courts.

My counsel and I have looked at Mr. Searcy's situation and are going
to attempt to reopen his appeal. However, there are no procedures in place,
or road to the courtroom door, which provides a remedy for this situation.
We must engage in, what I call, "creative litigation," with no assurance
his situation will ever be corrected. Distressing to me are the facts that
new evidence adduced at his New Trial hearing prove Mr. Searcy is innocent,
and he is sentenced to 40 to 75 years in prison for a crime he did not
commit. The victim of the robbery testified at the New Trial hearing that
she had misidentified Mr. Searcy, and had subsequently contacted the prosecutor,
after trial, stating she had seen the real robber. The trial court, because
Mr. Searcy had a prior criminal record, "chose" not to believe the recantation
of Mr. Searcy's identification, (an important distinction by law),
a choice which, according to law, was not the judges to make without infringing
upon the province of the jury which had rendered the guilty verdict based
on a later retracted identification of the only witness to the crime.

Again, this is but one example of what is happening on a regular basis
in our courts as inexperienced law clerks are delegated the authority reserved
to experienced, lifetime-appointed judges, who simply cannot physically
read all the documents involved in the 56,000+ cases being decided per
year. (See, "All the King's Horses...").

This increase in case load in the higher courts is not only caused by
the increased numbers of cases being filed in today's litigation happy
society, but is also caused by the design of the court system itself. Picture
a funnel that is upside down. The base is filled with the local trial courts
in every county in this nation. The top is the U.S. Supreme Court. The
first level above the trial courts is the local District Court of Appeals,
which usually, except in large counties containing major cities, hears
appeals from four or five surrounding counties. In Ohio there are 12 District
Courts of Appeals for 88 counties. Those 12 District Courts of Appeals
have only 66 judges assigned to them and every decision issued must be
ruled upon by a three- judge panel acting as one unit. This leaves only
22 panels able to hear appeals from 88 counties issuing decisions for 11,000,000
people. Above the Ohio Court of Appeals is the Ohio Supreme Court which
must hear every appeal (or which is supposed to at least read them), from
all decisions issued by these 22 appellate panels. Only seven judges sit
on the Ohio Supreme Court, and they must act as one unit in deciding each
case, and whether or not to hear it. They are presented thousands
of cases per year.

For State criminal defendants, the next step is the United States District
Court in the area of where the prisoner is incarcerated, and a Petition
for a Writ of Habeas Corpus. The burden and case load of these U.S. District
Courts is staggering. In 2000 these courts; accepted 63,863 guilty pleas
from federal defendants; conducted 6,746 criminal trials and 7,933 civil
trials; adjudicated 1,192 Petitions for a Writ of Mandamus; adjudicated
26,462 Civil Rights Actions; adjudicated 27,446 Federal and State prisoner
Habeas corpus actions, and ruled upon 26,759,850 pages of documents just
in the Habeas Corpus cases alone. (See, my article, “What John Ashcroft
Has Done, Or, The Good, The Bad, And The Ugly” (based on numbers appearing
in “All the Kings Horses…”)).

At least, that is how the numbers come out when all the statistics quoted
in the Sourcebook of Criminal Justice Statistics, 2000 (NCJ-190251), are
compiled and extrapolated. (See, Tables, 5.21; 5.38; 5.61 and 6.11).

Less than 1% of all State prisoner Habeas Corpus actions result in relief
being granted. That is little wonder considering another deception being
perpetrated on Habeas litigants which I have personally caught a court
doing.

In a double-homicide, original Death Penalty case for a man named Ed
Emerick, I assisted him in filing a Petition for a Writ of Habeas Corpus.
Habeas Rule 5, because Ed is now broke, requires the State Attorney General,
when filing their Answer/Return of Writ, to attach and submit to the U.S.
District Court the complete transcripts of the trial. When we received
the Answer/Return of Writ from the Ohio Attorney General, with that Answer
we were served, as required by Federal Rule of Civil Procedure 4, with
a copy of everything the Ohio State Attorney General was supposed to have
been filed with the Court.

Included were several boxes containing the 4,000+ pages of the trial
transcripts. Subsequently, because Ed's case contained complicated legal
issues and proof of Ed's innocence which was wrongfully excluded from the
trial by the trial court judge, I was able to win a motion ordering appointment
of counsel from the Federal Public Defender's Office in Dayton, Ohio. Attorney
Beth Goldstein Lewis was appointed as counsel. (She has since quit the
FPD's Office but they are still representing Ed, convinced as I am that
he is innocent). When Ms. Lewis took over the case, she checked the files
at the Federal Courthouse in Dayton to make sure everything was correct.
What she found shook her, the entire staff at the FPD's Office, Ed and
me.

In a double-murder case, with Ed sentenced to 70 years to life, the
Ohio Attorney General had intentionally deceived Ed and me by sending us
a copy of his trial transcripts with the Answer/Return of Writ, but not
filing a copy with the Court, knowing that without the trial transcripts
before it, the U.S. District Court could not grant relief on the fact-intensive
errors Ed had raised in his Petition for a Writ of Habeas Corpus.

Further, because it is the duty of the Habeas Petitioner to complain
if all the documents needed were not provided to the Court by the State,
had Ed been denied appointment of counsel we would have never known the
Court ruled on the Habeas without reviewing the trial transcripts, as is
absolutely mandated by law. (see case law cited in “Methodology” section
following “All the Kings Horses…" on prisonerlife.com)

Neither the Clerk of the Court, nor the Judge, informed us of the failure
of the Ohio Attorney General to file a copy of the transcripts with their
Answer/Return of Writ, as mandated by Habeas Rule 5.

Why?

I have found there is a collusion between the State Attorney Generals,
Judges and Clerks of the Courts in State prisoner Habeas Corpus cases to
quietly ignore the lack of a trial transcript in the State's Answer/ Return
of Writ, because the Federal Buildings do not have enough storage space
to hold the transcripts of all the State Habeas Petitions filed, and that
many of the Habeas Petitions denied by U.S. District Courts are denied
without the Court ever seeing or reading the trial record of the case which
is the only place the facts of many Habeas errors appear.

This is perfidious--a deliberate breach of faith, and the indirect denial
of a right precious to our Founding Fathers, and preserved in Article I
of the Constitution.

Upon leaving the U.S. District Court on appeal after the denial of a
Habeas Petition, the State prisoner arrives at the local United States
Court of Appeals. Those 12 U.S. Courts of Appeals are assigned 167 judges
which operate exclusively as three-judge panels, for a total of 55 panels
available on any given work day. 11,297 prisoner’s Petitions for a Writ
of Habeas Corpus were decided by these 55 panels of judges in the year
2000. A total of 56,000+ cases were adjudicated by these 55 panels in 2000.
To simply read the transcripts of the 11,297 Habeas cases, only 20% of
their total case load, each judge had to read 866 pages of documents each
and every work day during the year 2000, and then complete the other 80%-of
their cases. The judges are required to read these cases, by law, not some
law clerk. (See, "All the King's Horses and All the King's Men..., published
on Prisoner-life.com's main "Articles" section, "Methodology" section).

As with any constriction to a flow, as you move up the funnel the cases
in the court system move faster and faster, receiving little more than
a cursory glance, usually by an inexperienced law clerk, neither qualified,
nor authorized by Article III of the Constitution, to make the momentous
decisions affecting, sometimes as in Ed's case, the rest of some citizen's
life.

The above lengthy lead-in was necessary to give you a picture of what
is happening in our court system. Add to that how the requirements for
receiving relief increase as the defendant progresses up the funnel, and
a clearer picture of the failings of our system emerges.

2.) Progressive Standards of Review Allowing
Relief

To be entitled to relief from an error on direct appeal, as stated earlier,
Chapman
v. California, supra., requires the error raised not be “Harmless
beyond a reasonable doubt.”

Acceptance by a State Supreme Court of a case is totally discretionary
and only a very few of the thousands of cases being appealed in any one
State ever receives a full merit review of the issues raised and denied
on Direct Appeal.
On Petition for a Writ of Habeas Corpus to a U.S. District Court, the
standard for relief starts with a showing the State court’s decisions were
"clearly contrary to...or an unreasonable application of federal law as
decided by the U.S. Supreme Court." 28 U.S.C. (United States Code) §2254(d).
If that threshold is met, the Habeas Petitioner must then argue and prove
the error, "Had a substantial or injurious effect on the jury's verdict."
Brecht
v. Abrahamson, 507 U.S. 619 (1993).
These standards for relief are much higher than Chapman’s “Harmless
beyond a reasonable doubt,” and much more difficult to meet. Lower State
courts are presumed to have decided the Constitutional issued correctly.

This is, of course, providing the incarcerated prisoner was able to
meet all the procedural requirements and time deadlines in the State courts,
and is not procedurally defaulted, a situation which prevents any review
of the errors, no matter how grave of a constitutional violation they may
be. This subject is covered in detail in my article "Civics: An Advanced
Course Taught Only In Prison,"on PrisonerLife.com. 79% of all State prisoner
Habeas cases are dismissed as procedurally defaulted, leading to no federal
court review of error at all!

But these higher standards for relief are not the end of it. The courts
have created special standards to be applied over and above the standards
for relief discussed above, when the person committing the error is an
attorney or a prosecutor.

Many Grounds for Relief filed by prisoners involve errors either trial
or appellate counsel committed, or omitted, during their representation
of the Habeas Petitioner. The court will first determine if an error was
made, and then apply the standard of Strickland v. Washington, 466
U.S. 387 (1985), requiring a "reasonable probability that but for counsel's
error the outcome of the proceedings would have been different." Counsel's
actions are measured against what a "reasonable attorney" in counsel's
position would have done, and not using hindsight, but viewed from counsel's
actions or inactions at the time they were done. Then, using hindsight,
and all the evidence adduced against the defendant, including that presented
after counsel committed the error, the court determines if counsel's actions
or inactions, if different, would have changed the outcome of the proceeding,
whether at trial, or on appeal. Then, after applying this standard of review,
the additional standards of 28 U.S.C. §2254(d) and Brecht applied
also!

So while the same error may have entitled the defendant to a reversal
and new trial under the "Harmless beyond a reasonable doubt" standard applied
on Direct Appeal, if appellate counsel never raised the error of trial
counsel's ineffectiveness in the appeal, because he works in the same Public
Defender's Office with trial counsel, for instance, or plays golf with
him, or socializes with him and does not want to see him either disciplined
or lose his license to practice law, this higher standard of review, one
almost never resulting in relief, protects counsel from jeopardy, and leaves
the defendants sitting in prison on a conviction that would have been held
as obtained with reversible Constitutional error on Direct Appeal, if it
had been raised, and presented correctly to the lower State Court of Appeals.

Like claims of ineffective assistance of trial or appellate counsel,
claims of prosecutorial misconduct are also entitled to an additional "buffer"
standard of review prior to the application of the heightened standards
of relief in 28 U.S.C. §2254(d) and Brecht. But the standard for finding
a prosecutor committed misconduct warranting a new trial is even more onerous
than that for finding counsel ineffective.

For claims of prosecutorial misconduct, the Habeas Court first applies
the standard of review set forth in Darden v. Wainwright, 477 U.S.
168 (1986), requiring the prosecutor's conduct, "so infected the trial
with unfairness as to make the resulting conviction a denial of due process.”
Id.
at 181. Meeting this standard is also near impossible. Then, as explained
before, the two enhanced standards of 28 U.S.C. §2254(d) and Brech
are also applied.

All of these heightened standards are set by attorneys, whether acting
as elected Legislators, or as Judges of the U.S. Supreme Court, and have
but one affect--they protect other attorneys from professional embarrassment,
from legal malpractice lawsuits, from losing their assets and from having
any public blemish on their record that would hinder them in seeking public
office. (See also, "Civics: An Advanced Course...;" "Doctrine of Finality").

Attorneys-are-protecting attorneys, even at the cost of uncorrected
unconstitutional convictions being allowed to ruin citizens lives, and
at a cost of hindering the evolution of the laws of this nation. I must
state at this point that there are good attorneys who are not a part of
the above. Look around your city and you will find attorneys who have devoted
their life and career to doing nothing but criminal trial and appellate
cases. Attorneys like William R. Gallagher of Cincinnati; Tom Miller of
Cincinnati; Paul Mancino Jr. of Cleveland; Allen Adair of the Franklin
County Public Defender's Office in Columbus, Ohio; David Bodiker. John
Fenlon and Tom Wetterer of the Ohio Public Defender's Office; Fred Hoefle
of Cincinnati; Professor James S. Liebman of the Columbia School of Law
in New York; Professor Margery Koosed of the Akron School of Law; Todd
James of the National Child Abuse Defense Resource Center in Holland, Ohio;
Professor Mark Godsey of the University of Cincinnati College of Law; Professor
Barry Scheck of the Cordoza School of Law in New York; Richard Swope of
Reynoldsburg, Ohio and William Whitaker of Akron, Ohio, are all fine attorneys
who daily fight for our rights and freedoms, and to preserve the legacy
passed down to us by our ancestors, to name just a few. I must also name
attorney Kevin Spiering of Cincinnati, a young and very bright attorney
with a promising future, who with Bill Gallagher, joined me in my personal
fight for justice.

Exclusive practice of criminal law is a calling, and one which has long
hours and few monetary rewards, when your chair is beside the defendant.
Yet I know it is not on1y necessary, but has its own rewards. These men
are the true heroes of our times. The others, the ones who turn their back
on wrongfully convicted, or worse innocent citizens, and who perpetrate
and support a court system that gives only the appearance of justice while
protecting itself and its brethren, so they may continue to seek and accumulate
power and prestige, these are the real enemies of freedom and all this
Nation stands for.

The Judicial System of this nation needs a complete overhaul from top
to bottom. Unless this is realized by you, talked about and made a political
issue, thousands of unconstitutionally convicted citizens, and innocent
citizens, will continue to languish in our prisons, leaving old and broken,
only to be replaced by new victims of justice. Someday, one of them may
be you, or your child, because when the innocent suffer no test is given
to see who qualifies, or who’s turn is next. How's your luck?

II. How Delaying the Release of the Innocent Protects
Attorneys.

I ask how your luck is because wrongful convictions occur in this nation
much more frequently than the government wants you to know. (See, my essay,
"Collateral Damage"). "Collateral Damage" was written by me in February
2001. I sent it to James Peterson, Senior Staff Writer of the Playboy Forum.

A year later I was contacted by Chip Rowe of Playboy. His letter to
me appears in the "Letters" section of my personal website at PrisonerLife.com.

In June 2002, Playboy published an article entitled "False Justice."
That article tracks and expands upon my essays, "Collateral Damage," "Once
You Are Accused," and "Civics: An Advanced Course Taught Only In Prison,"
which I also sent to Chip Rowe after he contacted me, and spent ½
hour on the phone with my attorney. Mr. Rowe's letter is linked to "False
Justice," if you care to read it.

In "False Justice," Mr. Rowe arrives at the same 5% innocent number
I have been using for several years, however, he arrives at that percentage
by a different route than I used. Mr. Rowe's percentage comes from an analysis
of the numbers of Death Row prisoners in Illinois who were exonerated and
released prior to Governor Ryan issuing a blanket Commutation of Sentence
for all 167 Death Row prisoners in Illinois. That percentage of Death Row
prisoners proven innocent prior to being put to death was 4.86%.

My percentage came from a different source. Many years ago, prior to
August 1995, I read an article in Prison Legal News citing to a U.S. Department
of Justice study which found that between 8% and 12% of all State prisoners
were either actually or factually innocent, and that 4% of all Federal
prisoners were either actually or factually innocent. Paul Wright, Founder
of Prison Legal News, has looked for that article and been unable to find
it for me. He wrote me and conjectured that it may have appeared in a column
PLN used to run that was written by a man named Dan Pens, entitled, "As
A Matter of Fact." Paul stated that they did not have all of those columns
in their archives. I had taken the mean of those percentages, and divided
them in half, to arrive at my 5% innocent numbers.

However, the point is that using two completely separate methods, Mr.
Rowe and I arrived at the same percentage of error rate in our system of
justice. That, I believe, indicates neither of us is too far off, and I
hope gives you additional confidence in that 5% error rate. I do not believe
that anyone reading this treatise has confidence that the Justice System
is 100% efficient, or that it corrects the errors it makes during the appeal
process 100% of the time, in light of the 147 persons The Innocence Project
at Cordoza School of Law in New York, ran by Professor Barry Scheck, has
caused to be released from the prisons of this nation as of March 2004,
after proving them innocent with new DNA evidence. And this is but one
of hundreds of such innocent projects across this nation who are obtaining
the release of other wrongfully convicted prisoners each month.

These citizens go into prison amid a fanfare of press conferences held
by the police and prosecutors appearing on podiums before the lights and
cameras of the local press, TV and radio, and come out of prison, proven
innocent, an average of 9½ years later, with a one-inch blip appearing
on page 12 of the local newspaper.

As of December 2003, there were 2.1 millions U.S. citizens behind bars
in this nation, and another 4.5 million on probation or parole. One in
every 32 adults are incarcerated, on probation or on parole.

If 5% of them are innocent, then 330,000 U.S. citizens, right now, and
not counting those who have been released from government control over
the past 40 years, are suffering undeserved oppression from both our government
and society, which richly, loudly and continuously heaps upon ex-felons
job, housing and social discrimination in our holier-than-thou pecking
order.

We strip them of their right to vote, to serve on juries, to hold Real
Estate licenses, to sell Insurance, and in Ohio, even to obtain a license
to sell cars. We strip them of their right to own a gun. I have seen ex-
felons charged, tried and convicted of having a Weapon Under a Disability
because they lived at home and their father, who has never been convicted
of any crime, had a gun cabinet in the basement of the home, and sentenced
to an additional 10 years in prison. One such man is in my cell block at
Lebanon Correctional Institution in Lebanon, Ohio.

Did you know that government funds are distributed to local communities
based on the population as found by the Census Bureau taken once every
10 years? Did you know the prisoners held in the prisons outside these
local communities are included in that Census count for that community?
That adds over 5,000 people to Lebanon, Ohio, counting Lebanon Correctional,
Warren Correctional, and the Minimum Security Correctional Camp located
outside those two prisons. Yet few of the 5,000 prisoners held in those
prisons are from Lebanon, Ohio, or the surrounding area. Most residents
of Lebanon work in the Corrections Industry, or supply the daily needs
of those 5,000 prisoners. Economic incentive for communities whose manufacturing
jobs have disappeared overseas, to allow new prisons built in their area,
are great.

Most politicians are former prosecutors or judges. The prosecutor who
was ultimately responsible for my wrongful conviction is now the State
Treasurer, and plans to run for State Attorney General. Senator Mike DeWine
of Ohio is the former State Attorney General. John Kerry is a former prosecutor.

You can't build new prisons unless you have prisoners to fill them up.
You don't want to run for public office and have your opponent pointing
to innocent citizens you are responsible for placing in prison during your
term as prosecutor, or judge. If you are a judge, and seek either election
or appointment to a higher court, you do not want the stigma of having
a high rate of conviction of innocent citizens from your court.

Nearly all Legislators are attorneys, and as asserted above, attorneys
protect attorneys.

So how does the brotherhood of attorneys protect its brethren and fellow
members of the Bar from the damaging stigma of being publicly exposed for
having caused, or been involved in, the convictions of innocent people?
How do they insure against closing down the 50 prisons the present 105,000
statistically innocent prisoners now fill? How do they avoid the economic
chaos to the communities, loss of jobs, loss of government revenue, where
those 50 prisons are located? Understand there are only 33 prisons in the
entire State of Ohio, ahd they are a four billion dollar a year industry.
Yet statistics of 5% innocent, nation wide, applied to 2.1 million prisoners,
indicate 50 prisons across the nation would have to be closed if all of
these 105,000 innocent prisoners had a remedy at law, and obtained release.
This economic impact does not even include the Billions of dollars
in law suits that would result from their release. Find me a politician
who wants to be interviewed by 60 Minutes for opening this can of
worms!

The answer is obvious and simple, as to how attorneys, and I include
everyone from U.S. Supreme Court Justices and Senators, down to local prosecutors,
protect "their own."

Simply do not provide a remedy at law. And better yet, do not provide
a means of detecting the conviction of an innocent citizen, and
no one will ever know you need a remedy at law. Then tell the public,
every chance you get, two clichés that will stick in their mind
and become common folklore so accepted that no one, except these innocent
prisoner's families, who you can discredit as crying "sour grapes," will
ever question. Burn into the mind of the public two simple phrases:

"All prisoners lie."
"All prisoners say they are innocent."

By doing this, repeatedly in press conferences, on talk shows, in the
newspapers, teaching it in the law schools, and treating all prisoner claims
of innocence with disdain, a sigh and a condescending smile, the attorneys
create a "Boy who cried wolf," mentality in the public mind. Those few
attorneys, like Professor Barry Scheck and Professor James Liebman, who
do not "go along with the program," can always be labeled as "liberals"
not worth listening to, or portrayed as "overstating the problem."

This has worked well for years, until DNA came along. The Senate just
authorized $60,000,000.00 distributed to local police and prosecutors to
test Evidence Kits containing DNA evidence that has been lying in Evidence
rooms at police stations for 20 or 30 years. The purpose of this money
is to allow that DNA test results be entered into the National DNA Database,
containing the DNA profile of prisoners, in hope of solving hundreds of
thousands of old unsolved crimes. The original Bill introduced into the
Senate included provisions to pay for DNA testing for prisoners who have
been claiming they are innocent, some for as long as 20 or 30 years. But
Senate Republicans, (attorneys), eliminated that provisions from the final
version of the Bill that was signed by President Bush last week.

Last month, in response to international pressure, the government agreed
to set up a review process for the "detainees" held by the military at
the base in Guantanamo Bay, Cuba. What was wanted by the International
community was a process where prisoners would be given an opportunity to
prove to the U.S. they were innocent. The United States flatly rejected
that request and instead set up a yearly "review" of those prisoner's cases
at which the panel would decide whether or not there was "reasonable belief"
there was cause to continue their detention. "Reasonable belief" is the
standard of proof used in prison discipline hearings, and any prisoner
can tell you the "we believe society" frequently comes to their "belief"
against all evidence presented to the contrary.

In the United States of America, in the year 2004, there is no Agency,
no Commission, no branch of the Department of Justice, no State Agency
in any of the 50 States where an incarcerated citizen asserting their innocence,
regardless of the amount of new evidence they have obtained proving their
claim, can write or call and have their proof reviewed, or claim investigated.

In the United States of America, in the year 2004, there is no Court
Rule in any State or Federal court which allows an incarcerated citizen
who has obtained new evidence proving their innocence, where that evidence
is of a non-DNA nature, to present that evidence before a judge and receive
a review of that new evidence and the case, as a matter of right.
All
remedies available, such as a Motion for Leave to File a Motion For New
Trial, or a Delayed Post-Conviction, are totally discretionary,
and up to the judge, as to whether or not they are allowed to even be filed
by the Clerk of the Court.

The United States Supreme Court held in Herrera v. Collins, 113
Supreme Court Reporter, page 853 (1993), that whether or not a convicted
citizen is in fact actually innocent of the crime for which they are convicted,
is not an issue that raises a Question of Constitutional dimensions, and
that the right of an innocent citizen not to be imprisoned is not guaranteed
by the U.S. Constitution. Id..

These attorneys, by so holding, have insulted both the citizens of this
nation's intelligence, and the Constitution of the United States which
they took a sworn oath to uphold--to protect their own from the outrage
that would arise across our land if a means of detecting and investigating
prisoners claims of innocence, and the recognition of the right of an innocent
citizen to be released from imprisonment, resulted in the release of over
100,000 innocent prisoners, as statistics now shown by DNA exonerations
indicate may be imprisoned in this nation's Gulag.

5%...one in twenty, innocent and without even a government agency
to write a letter to asking for help.

On October 8th, 2003, after 13½ years incarceration, a new trial
court judge, who replaced my original trial court judge when he retired,
GRANTED my motion for Leave to File a Motion for New Trial, 7½ years
after my retrial in 1996, based on my presentation of five new witnesses,
U.S. Embassy records from the U.S. Embassy in Mexico City, Mexico, photographs,
medical records, telephone records, a U.S. Passport, an autographed book
dated in December 1988 dedicated to me by name, and records of the attendance
of one of my witnesses at a Spanish School in Mexico, proving beyond any
doubt that at the same time the alleged victim testified I was in Cincinnati,
Ohio committing the crimes for which I was convicted and sentenced to four
(4) consecutive Life Sentences, with a first parole board date of May in
the year 2036, I was actually living on a small beach in Southern Mexico,
over 4,000 miles removed from the alleged scene of the crime.

The Granting of my Motion for Leave was totally discretionary.

The first affidavit was obtained in April 1999 and submitted to the
United States District Court in Cincinnati, in my Habeas Corpus proceeding,
as newly discovered evidence of my innocence. Additional affidavits were
obtained and submitted to both the U.S. District Court and the United States
Court of Appeals up until the last document found, the U.S. Embassy records,
which had been disclosed by the U.S. Department of State, after a five
year wait, on June 17, 2002.

These United States Courts told me, in no uncertain words, that newly
discovered evidence proving I was innocent was irrelevant to any
decision the Court made, because I had no Constitutional right to either
be innocent, or to be released from prison because I was innocent These
United States Courts not only refused to consider evidence proving I was
innocent, but even refused to file my evidence and place it in the record
of my case. The Clerk of the Court would stamp it “Received,” but refused
to stamp it "Filed," and it was "filed" by my attorney.

The difference is anything not "Filed" is not considered a "part of
the record of the case," and can and will be safely ignored by the Judges
reviewing my Appeal, as though it doesn't even exist.

The United States Supreme Court, carefully presented, at a cost of
$10,000, with overwhelming proof of my innocence, and presented with a
Question asking if the Incarceration For Life of An Innocent Citizen Violates
Due Process, refused to accept my case, or answer the Question, on April
21st, 2003.

This treatise is not written in the abstract. It is written from personal
experience. An experience which has cost me everything.

I don't want to hear about a Constitutional Amendment banning Gay Marriages.

I want to hear about a Constitutional Amendment entitling prisoners
to an investigation of their claims of innocence, and if they prove that
innocence, the guaranteed right to a Fast and Speedy release from prison,
with a full investigation publicly revealing the names of the prosecutors,
police, judges, or citizens who caused the wrongful conviction to occur,
or a determination it was accidental. I want to see guaranteed compensation
for the time that citizen spent in prison wrongfully convicted, including
lost wages, attorney fees, court costs and compensation for mental anguish,
pain and suffering, either garnished from the wages of the persons who
falsely accused, or knowingly participated in the wrongful conviction,
or from the coffers of the County where the conviction occurred, if it
was by accident.

The Constitutional Right to prove one's innocence, as a free-standing
independent constitutional claim should be recognized at all levels of
our court system and addressed with the utmost gravity and diligence.

We need more courts and more judges, and less law clerks assuming and
performing the duties of judges, especially as it is now being done--in
secret.

Most of all we need to sweep away all the artificial procedural barriers
to addressing and finding the simple truth of criminal convictions and
get back to the basics, distinguishing right from wrong, culpability from
innocence, and crimes from moral or religious issues.

One of the greatest weaknesses of Democracy is that elected representatives
feel the need to justify their next election by showing their constituents
all the new laws they caused to be passed. Yet in a Democracy that is over
225 years old, most laws that really needed to be passed have already been
passed. We end up with representatives, desperate to distinguish themselves
from their future opponents, passing laws to fix things that are simply
not broken, while ignoring real problems in society because they fear controversy.

We need politicians who pledge not to pass any laws unless a study is
performed showing, because of some new technological change, or new statistical
evidence, a new law is needed, or an old law has become outdated, and who
concentrate on fixing problems like the structural deficiencies in our
Justice System.

We need a political party that does not present us with a choice of
electing one of two attorneys to represent us in Congress, or The White
House.

We need a new political party in this nation that is not labeled as
liberal or conservative, or represents only both ends of a wide spectrum
of beliefs.

We need a new political party that does not present us with candidates
who come from the top one-percent of wealth in this nation, and who have
a vested interest in laws designed to maintain their wealth. A party who
thinks if a man can buy this prescriptions from Canada cheaper, then it
is his right to do so. A party that believes innocent citizens should be
able to get out of prison as fast as they were wrongfully put in there.
A party who believes there should be enough judges to read the documents
filed in their courts. A party that believes a Constitutional error requiring
a reversal on Direct Appeal is a Constitutional error requiring a Federal
Court to issue a Writ of Habeas Corpus, and that error is error, no matter
when or where it is addressed, and should be reviewed under the same standard
in every court to hear the case.

This is still the best system of justice and government that has ever
been invented by man. Yet the pride we have in it should not be a drunken
pride. Pride is like whiskey, a man gets too much of it, he doesn't always
think too straight. Anything can be improved. Even the United States.

Until next time this is Jim Love reporting From The Front Line.
March 16th, 2004